[2002] KEHC 844 (KLR)
The court found that the applicant failed to annex a draft defence or pleadings from the lower court to demonstrate that there were good grounds to be heard or that a meritorious case existed. The applicant also failed to demonstrate, by evidence, that substantial loss would be suffered if the stay was not granted...
Source-derived case information.
- Citation
- [2002] KEHC 844 (KLR)
- Parties
- Appellant: Siaya Supermarket Limited; Respondent: Badbone Clark Kenya Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 430 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Appeals Process, Discretionary Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Siaya Supermarket Limited
Appellant
Badbone Clark Kenya Ltd.
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant demonstrated sufficient grounds for grant of stay of execution pending appeal.
- 2 Whether the applicant showed that substantial loss would result if stay was not granted.
- 3 Whether the applicant established that the respondent would be unable to refund the decretal sum if the appeal succeeded.
Ratio Decidendi
The court found that the applicant failed to annex a draft defence or pleadings from the lower court to demonstrate that there were good grounds to be heard or that a meritorious case existed. The applicant also failed to demonstrate, by evidence, that substantial loss would be suffered if the stay was not granted or that the respondent would be unable to refund the decretal sum if the appeal succeeded. The court emphasized that the grant of a stay of execution is a discretionary remedy, and in the absence of sufficient evidence and demonstration of the required legal thresholds, the court declined to exercise its discretion in favour of the applicant. Consequently, the application for...
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIV APP 430 OF 02
SIAYA SUPERMARKET LIMITED ……………………..APPELLANT
VERSUS
BADBONE CLARK KENYA LTD. ……………………..RESPONDENT
R U L I N G
In an application of this nature where the applicant is seeking the court’s indulgence to be heard in the lower court, it is upon the said applicant to annex a draft defence to the application to confirm to the court that indeed he/she had good ground to be heard in that court. At the same time it is important in an application of this nature for the applicant, not only to show but to demonstrate, that if no order of stay is made, the applicant will suffer substantial loss or that the appeal, if successful will be rendered nugatory if the order of stay is not granted.
The applicant should also show that if the order of stay is not made and the appeal succeeds after execution, the respondent is not the kind of person to refund the decretal sum. In this application the applicant has not annexed thereon copy of pleadings in the lower court to show what actually transpired to lead to the order subject to the appeal which gave rise to this application or that he/it had a good case had it been given a chance to be heard in the lower court..
The applicant neither demonstrated how or if any, what substantial loss will be suffered if this application for stay is not granted or that if the stay is not grant and the appeal succeeds, the respondent is the kind of litigant who will not refund the decretal sum. This court is aware this is a discretionary order which the court should or should not grant in exercise of that wide discretion. Having heard submissions of counsel for both parties and perused through the application, the supporting and replying affidavits and the amount involved, I do not find this a suitable case where stay of execution should be granted.
I dismiss this application with costs.
Delivered this 28th day of November, 2002.
D.K.S. AGANYANYA
JUDGE